State Ex Rel. Thornton v. Barbour

Brogden, J. Two primary questions of law are presented by the record. (1) What is the liability of sureties on successive guardian bonds upon default of the guardian? (2) Does the clerk of the Superior Court have power to release •sureties on guardian bonds? The evidence produced before the referee and the trial judge is not included in the record. Consequently, it is to be assumed that the evidence fully justified the findings of fact and the conclusions of law. More than eighty years ago this Court undertook the consideration of the first question of law involved in this appeal in the case of Jones v. Hays, 38 N. C., 502. The headnote of the opinion capitulates the essential principles of law contained therein and is as follows: “Where a guardian gives several successive bonds for the faithful discharge of his trust, the sureties on each bond stand in the relation of cosureties to the sureties on every other bond; the only qualification to the rule being, that the sureties are bound to contribution only according to the amount of the penalty of the bond, in which each class is bound.” In the course of discussion, Ruffin, C. J., declared: “The case of a guardian and of his successive bonds, is therefore precisely like that of clerks and their bonds; as to which it has been held, that the office was not annual, though the bond be given annually, but that all the bonds, given through the several years for which the office continues, are cumulative securities for the performance of the duties of the office, and particularly for the payment of money received at any time before or after the giving of a new bond.” *586 It is now settled beyond question that each bond of a clerk, register of deeds, or other public officer, having a fixed term, is liable only for defalcations occurring during the term for which the bond is given, even though the principal and surety may be the same for all terms. Stacy, C. J., in S. v. Martin, 188 N. C., 119, 123 S. E., 631, remarked: “Each term, like every tub of Macklinian allusion, must stand upon its own bottom.” Gilmore v. Walker, 195 N. C., 460, 142 S. E., 579; Jacksonville v. Bryan, 196 N. C., 721, 147 S. E., 12; Pender County v. King, 197 N. C., 50, 147 S. E., 695. Consequently it becomes important to inquire: What is the term of a guardian under the law of North Carolina? An examination of the pertinent statutes discloses that the ordinary guardian has no fixed term of office. While the statute requires a renewal of the bond every three years (C. S., 2165), there is no requirement for a new appointment; nor does C. S., 2160, apply to the facts of the ease. Indeed, the precise question was answered in J ones v. Rays, supra, where it is written: “The office of guardian is not for a definite period of three years, or temporary at all, that is to say,' within the nonage of the ward. ... It was, therefore, in its creation, one office for the whole minority of the ward, unless it was expressly for a shorter period, or unless subsequently shortened by an order of removal. The sureties, given at first, continued through the term, and could be relieved only by the removal of the guardian, or getting counter securities from him, by way of indemnity.” See, also, Bell v. Jasper, 37 N. C., 597; Jones v. Blanton, 41 N. C., 115; Hughes v. Boone, 81 N. C., 204. The authorities are assembled in the opinion and appended thereto in the case of New Amsterdam Casualty Co. v. Bookhart, 76 A. L. E., 897. In considering the second question of law presented, this Court has consistently held that county commissioners have no authority to release the sureties on a bond of a sheriff. Beginning with Commissioners v. Clark, 73 N. C., 258, the right of the commissioners to release sureties on the bond of a public officer has been denied upon the theory that the commissioners exercise delegated power only, and a release without express statutory authority was invalid. A clear statement of the rule is found in Fidelity Co. v. Fleming, 132 N. C., 332, 43 S. E., 899, as follows: “There can be no doubt as to the intention of the commissioners to release the plaintiff as surety for the sheriff, but it is not a question of intention, but one of power, and the authority to release must be derived either by expression or implication, from some statute. If the statutory power did not exist at the time the commissioners attempted to release the plaintiff, then the act of the commissioners was invalid, no matter how clearly and explicitly they expressed their intention to release. An act which places in the power of the board of *587 commissioners of a county tbe approval of the official bonds of certain officers does not confer upon it the power to release sureties on those bonds on presentation of a new bond.” Beads, J., writing in Harris v. Harrison, 78 N. C., 202, construing Foye v. Bell, 18 N. C., 175, pointed out that an order in the Foye case expressly releasing sureties was of no avail. Disposing of the contention, he said: “Nothing can be clearer from that case than that the ward had his remedy against both sets of sureties, and it was for them to settle their liabilities among themselves.” These principles of law, discussed and applied approximately a hundred years ago, are fortified by an examination of our statute. The clerk is not empowered by any express statute to release sureties, upon bonds approved by him, certainly at a time when the principal is in default. C. S., 2166, provides a remedy for dissatisfied sureties upon guardian bonds, but release is not one of the remedies therein contemplated. Cases in point from other jurisdictions are cited- by the defendant, National Surety Company, in support of its contention that where there are several sets of sureties that such who were on the bond at the time of defalcations are the only ones liable for the loss. See Lowry v. State, 64 Ind., 426; Williams v. State, 89 Ind., 571; State v. Hardy, 200 Mo. App. Court, 405, 206 S. E., 904. Some of these cases involve the liability on the bond of a public guardian who is elected for a specific term of office, but whatever may be the strength or weakness of judicial reasoning in other courts, this Court, for more than one hundred years, has been committed to the doctrine delineated in the foregoing decisions. Moreover, they are built upon sound principles of conduct and liability, and their age in nowise impairs their fundamental correctness in solving the pertinent problems of modern life. Affirmed.